Ohio House Bill 414

Summary

Ohio House Bill 414 would amend existing law that makes it a crime to use a computer to post a message that causes another person “mental distress.” Existing law defines “mental distress” as rising to the level of mental illness or condition that involves some temporary substantial incapacity, or mental illness or condition that would normally require psychiatric treatment, psychological treatment or other mental health services.

The bill would broaden that law to apply to any form of written communication. It would also lower the standard of harm to causing “emotional distress,” which is defined as significant mental suffering or distress that does not necessarily require professional counseling. It also broadens that party who may be injured to include a person’s immediate family.

Status

The bill died in the Senate Committee on Judiciary.

Analysis

Government may criminalize speech that rises to the level of harassment or intimidation, but this legislation substantially lowers the bar as to what can be deemed an injury, and the definition of the injury is more amorphous. The injury can be sustained by a person to whom the communication was not directed. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared.

Speech protected by the First Amendment often causes emotional distress to the subject or to his or her family. Rush Limbaugh’s recent comments about a Georgetown law student may have caused her emotional distress. Similarly, a news story revealing a politician’s philandering will very likely cause emotional distress to his or her spouse or children.

There is no historic exception to First Amendment protection for speech simply because it annoys, offends or even causes emotional distress. In three recent cases, the Supreme Court has emphasized that it is reluctant, if not unwilling, to expand the categories of unprotected speech to include different kinds of offensive or distasteful communication beyond the historic exceptions.

To the extent that harassment can be considered an existing category of unprotected speech, the bill is still unconstitutionally vague. In certain narrow, well-defined instances, speech may rise to the level of coercion, threats, intimidation or persistent harassment and may amount to a crime. But this bill does not define “emotional distress” adequately to distinguish between protected speech and the traditional narrow crime of harassment. This vagueness in the legislation will have a significant chilling effect on protected speech. Speakers have little guidance to determine what speech is protected and what is subject to prosecution, and must either risk a criminal prosecution or self-censor their speech.

History

On January 11, 2012, the bill was introduced [2] and referred to the House Committee on Criminal Justice.

On May 21, 2012, Media Coalition sent a letter [1] to Rep. Marlene Anielski, the sponsor of the bill, explaining the constitutional issues with it.

The bill was substituted [3] by the committee on May 23, 2012. The constitutional issues with the bill remain.

The House passed the bill on November 14, 2012. The bill was sent to the Senate for consideration and referred to the Senate Committee on Judiciary.